Freedom of Information "Popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy." -- James Madison "For all who do evil hate the light and do not come to the light, so that their deeds may not be exposed. But those who do what is true come to the light, so that it may be clearly seen that their deeds have been done in God." -- John 3:20-21.

Madison's words have a special resonance coming from the author of the First Amendment, but the idea that ethics thrives in the sunlshine is --  as this Biblical quotation shows -- a very old and hallowed idea. 

Local, state and federal governments today do not really observe either the Biblical admonition or the intent of the founding fathers. When it comes to government secrecy, the more the better. About four million documents classified as secret every year. 

** FOIA laws were passed at the federal level in 1966, and the primary users were expected to be journalists. Today only a fraction of requests are from press; most are from lawyers, academics and historians.

Initially the idea behind FOIA was to open records except in circumstances that were exempt: 

• national security;
• internal personnel issues;
• trade secrets;
• drafts of interagency memos;
• records on individuals, eg medical, personnel;
• bank regulation;
• oil and gas exploration; and
• law enforcement

The law enforcement exemptions include anything that would deprive person of fair trial, unwarrented invasion personal privacy, disclose confidential sources, disclose investigative techniques, endanger life or safety of anyone.

Some of these exemptions are big enough to drive a truck through. At the state level, major exemptions are similar. Although there is no national security exemption, there are law enforcement, personnel, and pending litigation exemptions, as well as property purchase or sale discussions, information about toxic waste, and over 100 loopholes in the law.

In Virginia, before the law was overhauled in 2000, routine requests for records in all kinds of areas were being denied. A state survey found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state's police jurisdictions. Also in 1999, an incident at Radford University showed how far from the original intent of the law we had come.  State police turned down a Radford University student newspaper request for a copy of a report concerning a student who was run over by a reckless city policeman.  In turning down the request, the state police did not take note of the FOIA law, (especially Section 2.1-341)which said that: "The affairs of government are not intended to be conducted in an atmosphere of secrecy ..." and that the FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."

Instead, the request was denied since  Section 46.2-380 says that anyone involved in an accident, and his or her attorney or insurance company is allowed a copy of the accident report. Apparently the pretense was that this was an exclusive list. 

The state legislature took a dim  view of the pretense, and a sweeping review of Va. FOIA law was undertaken in 2000, supported not only by Va Press Association but also the Society of Professional Journalists and the Virginia Library Association.  The legislation established a Freedom of Information Advisory Council that hears questions and complaints directly from citizens.  The council has also pointed out that all state agencies have been required to post FOIA  informtion on their web sites -- a reqirement that many agencies seem not to have taken seriously. 

Using FOIA is simple; you write a letter stating you wish to see certain records and have a right to do that under FOIA. State agency has 10 days to respond (federal agency 20 days). What usually happens is that they say they'll call you when they find them. Unfortunately, many state agencies require FOIA process for the simplest kinds of information.
Other problems include very long lead times for reporting and very heavy editing.

In 1996, Congress passed Electronic FOIA Act, requiring agencies to make decision about documents before request and publish some on line: also detailed indexes to make it easier to know what is held; and established a stricter timetable.

** Sunshine laws are similar to FOIA laws, but require that local, state or federal legislative or executive hearings take place in public buildings with adequate notification to the public. Executive sessions are possible under some circumstances (personnel, legal issues, for example) but all decisions must be made in public sessions.

Buckley Amendment 1974 -- said colleges that dont keep records private may be ineligible for federal aid. This has been widely applied to crime and judicial boards on college campuses.

Bauer v. Kincaid, 1991, a federal appeals court said state laws requiring open records overrides federal law. Still, the debate over campus privacy versus freedom of information is not settled.

Since 911, the FOIA has been seen as secondary to national security issues. A 2003 General Accounting Office report details some of the changes in the attitudes of FOIA officers in the government.

Links:

Virginia Freedom of Information Council judges appeals and requests concerning FOIA problems. Also has law with listing of exceptions to Virginia FOIA.

Roanoke Times Op-Ed piece on Radford City police and the need for an FOIA Council.

RCFP web site .

RCFP comparison of state by state FOIA laws.